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Legislation and Policies

Policies

Introduction

At some point in our lives, mental illness¹ will impact most of us either personally or through a family member, friend or colleague. Health Canada has estimated that 20 percent of the population will experience a mental illness, which can affect people in all occupations, socio-economic status, cultures, race and at all education levels. Facing discrimination because of race, gender, age, disability, sexual orientation or any other ground protected under the Canadian Human Rights Act can have an impact on mental health.

The workplace environment can contribute positively to mental well-being. However, at times, the workplace can contribute to mental illness either as a direct source of stress, depression and anxiety or by exacerbating issues that exist in other parts of one’s life. If not well managed, workplace-related mental health issues can lead to increased rates or levels of illness and can result in absenteeism, tension and conflicts between colleagues, deteriorating employee performance, reduced morale and a need for disciplinary action.

As well, negative attitudes toward mental illness remain widespread throughout society, leading to stereotypes, fear and discrimination. An individual might not seek treatment or might delay seeking treatment because of the stigma associated with mental illness.

Not all mental illness gives rise to functional limitations. Where such limitations do exist, they may be minor. The majority of persons who have mental illness improve over time and lead stable and productive lives. In fact, while mental illness is often transient and short term, stigma and discrimination tend to remain and can affect the person long after the symptoms of mental illness have dissipated.

The Canadian Human Rights Commission’s mandate, as established by the Canadian Human Rights Act and the Employment Equity Act, includes preventing discrimination in employment. The Commission is committed to achieving the highest standards of human rights practice, programs, policies and procedures within its own workplace. In support of this commitment, the Commission has created this policy.

This policy outlines the accommodation process and provides guidance to help managers and supervisors take proactive steps to ensure employees with a mental illness are offered appropriate accommodation when necessary. It is our hope that through our accommodation process, education initiatives on mental health and mental illness, programs such as the Workplace Well-being Initiative and the provision of counselling and support for those experiencing mental illness, as well as other measures outlined in this policy, the Commission can create a work environment that supports health and well-being of all employees and that contributes to preventing mental illness.

1. Statement of Policy

1.1 The Canadian Human Rights Commission will foster a supportive workplace environment where:

• all employees have and model a positive attitude towards mental illness;
• factors that might worsen mental illness are diminished;
• the symptoms of mental illness can be identified and assistance and accommodation offered;
• employees feel safe in self identifying as a person with a mental illness so that they can be offered support in accessing proper treatment;
• discrimination based on mental illness is prevented; and
• mental illness is understood and accepted without stigma as a result of ongoing training and information about mental illness.

1.2 Employees who experience mental illness are entitled to have their needs accommodated so that they can do their work to the best of their abilities. All requests for accommodation will be individually assessed, using a case-by-case approach.

2. Application

This policy applies to all Commission employees and to applicants for employment with the Commission (see section 4, Definitions).

3. Objectives

This policy is designed to:

• help managers and supervisors take proactive steps to ensure that employees with mental illness are supported appropriately;
• ensure that employees who require accommodation receive effective, timely, and confidential assistance;
• help counteract the stereotypes, myths, negative attitudes and stigma that can be associated with mental illness through the promotion of positive attitudes and modelling by supervisors and senior management, clear practices and ongoing education; and
• support existing policies that help prevent unjustifiable discrimination.

4. Definitions

Accommodation
The duty to accommodate refers to the obligation of the Commission to take steps to eliminate disadvantage to employees and prospective employees resulting from a policy, rule, practice or physical barrier that has or may have an adverse impact on
individuals or groups protected under the Canadian Human Rights Act or identified as a designated group under the Employment Equity Act (women, Aboriginal peoples, persons with disabilities and visible minorities).

Applicant
An applicant is an applicant for employment at the Canadian Human Rights Commission.

Employees
For the purposes of this policy, the term “employees” includes full-time, part-time, casual, seasonal, term and indeterminate employees.

Employee Assistance Program (EAP)
The Employee Assistance Program offers professional assistance, at no cost, to help resolve problems in an employee’s life that may affect work performance. EAP is a means through which an employee can access mental health and addiction services. Managers and supervisors can also consult with EAP about accommodation measures. Any employee with a concern can ask for assistance and this help will be provided on a strictly confidential basis. Health Canada provides EAP services to Commission employees.

Mental illness
Mental illness is characterized by alterations in thinking, mood or behaviour—or some combination thereof—associated with significant distress and impaired functioning. The symptoms of mental illness range from mild to severe, depending on the type of mental illness, the individual, the family and the socio-economic environment. Mental illness may take many forms, including mood disorders such as depression and bipolar disorder; schizophrenia; anxiety disorders such as obsessive-compulsive disorder and post-traumatic stress disorder; eating disorders; and addictions. (The Human Face of Mental Health and Mental Illness in Canada, Public Health Agency of Canada, 2006)

For the purposes of this policy, mental illness does not include developmental disabilities.

Undue hardship
Under the Canadian Human Rights Act, health, safety and cost are relevant factors in assessing whether accommodation would result in undue hardship. The point of undue hardship is reached when all reasonable means of accommodation are exhausted and only unreasonable or impracticable options remain. A relatively minor risk that an employee is prepared to assume will not constitute undue hardship. Serious risk to the health and safety of others will constitute undue hardship. When a request for accommodation involves a cost, that cost would have to substantially affect the viability of the organization for the accommodation to be considered undue hardship.

5. Legal Framework

Mental illness is a disability which is explicitly recognized under the Canadian Human Rights Act. Section 25 of the Act defines disability as including “any previous or existing mental or physical disability...”. The Act prohibits discrimination in employment on the basis of a disability or on the basis of perceived disability and requires accommodation to the point of undue hardship.

The Employment Equity Act requires an employer to include provisions in its employment equity plan for reasonable accommodation of employees’ needs, which may be associated with being a member of one of the designated groups.

6. Guidelines on Accommodation and Undue Hardship

Just as individuals with physical disabilities may require physical aids or structural changes in the workplace, individuals with a mental illness often require that social or organizational accommodations be made. As with all requests for accommodation, each case must be considered individually, using a case-by-case approach.

Most individuals with a mental illness are fully capable of engaging in the accommodation process and may not need accommodation or require it only on a temporary basis. However, some employees, who have not come to terms with their illness or are prevented from doing so because of the very nature of their disability, may not take adequate steps to obtain treatment or seek accommodation. Some forms of mental illness can impair people’s ability to assess their own situation, to appreciate the need to participate in accommodation efforts, to articulate their concerns, and to deal effectively with representatives from management or their union. However, employers should not use this fact to justify ceasing accommodation efforts before exploring all reasonable accommodation options.

There are, however, limits on the duty to accommodate. While denial of the existence of a mental illness may be a symptom of the condition, the accommodation process requires the active participation of the employee or applicant. The Commission’s duty to accommodate may be set aside where an employee or applicant repeatedly refuses to acknowledge or deal with their mental illness, or where providing accommodation would result in undue hardship.

In establishing undue hardship, an employer may not rely on anecdotal or impressionistic evidence of risk. Instead, it must show that it obtained information about the abilities of the employee and about the disability, and explored all possible accommodations. With respect to health and safety concerns, it is important to determine whose health and safety is at risk and the magnitude of the risk.

¹ Knowledge about mental illness is constantly evolving, as is the terminology used to denote this wide range of medical conditions. Some organizations use expressions such as mental health disabilities, mental health issues or mental health problems. We have chosen to use the term ‘mental illness’ in this policy so as to ensure consistency with the materials referenced in the policy from the Canadian Mental Health Association and the Public Health Agency of Canada. The term mental illness is defined in Section 4.